Cherian Mathew v. Principal S.B College, Changanassery, Kerala High Court, Judgment, Law, casemine.com

Factual and Procedural Background

Counsel for both sides agreed at final hearing that the Court need not adjudicate each petitioner's individual claim. Instead the parties asked the Court to state the legal principles governing (a) how salaries of teachers appointed in private colleges are to be disbursed by the Director of Collegiate Education, and (b) the role of the University and the Director where the propriety of an appointment is in doubt. The Court proceeded to dispose of several Original Petitions and a Writ Appeal by a common judgment setting out those principles.

The opinion discusses the relevant provisions of the Kerala University First Ordinance, 1978 (particularly Chapter XIII and Ordinance/Statute 3) as governing calculation of workload and the creation/approval of teaching posts for private colleges. It notes that Mahatma Gandhi University has no separate ordinance and that the Calicut University First Ordinance is in pari materia with the Kerala University First Ordinance. The judgment sets out the pre-amendment and post-amendment procedures for calculating teacher requirements (the amendment took effect on 13.9.93) and directs the Collegiate Education authorities to act in accordance with the Universities' decisions.

Legal Issues Presented

What are the legal principles governing disbursement of salary by the Director of Collegiate Education to teachers appointed by private college managements when the appointments are assessed and approved by the University under the Kerala/Calicut University First Ordinance?

Where the Director of Collegiate Education doubts the propriety of a teacher's appointment (for example, that the workload did not warrant the appointment), what procedure must the Director follow and what is the binding effect of the University’s decision?

Whether the Government (through the Director) is entitled to require prior approval from the Director of Collegiate Education before a private management appoints a teacher, or otherwise to sit in judgment over a University’s determination as to the number of teachers required?

Which procedural rules govern calculation of required teaching posts before and after the amendment to Chapter XIII (effective 13.9.93), and what conditions must be satisfied for post-13.9.93 appointments to attract Government-paid salaries?

Court's Reasoning and Analysis

The Court began from the parties' common position that a declaratory statement of law would suffice. It then analysed the statutory scheme laid down in the Kerala University First Ordinance, 1978 (Chapter XIII, and Ordinance/Statute 3) and the equivalent Calicut University provisions to explain how workload is assessed and posts created for Arts and Science departments in colleges run by private managements.

The Court set out, in detail, the procedure under Ordinance 3 prior to the amendment of 13.9.93: calculation of total lecture and practical supervision hours based on syllabus and student strength; deduction of workload for the Head of Department and Principal; division of the balance by the normal hours per lecturer (14 for Arts, 15 for Science); allocation of any remaining hours as one additional hour per teacher, and creation of an additional post if necessary. The Court also reproduced the notes on minimum workload and part-time appointments in low-workload subjects.

On that basis the Court reasoned that when a teacher is appointed by a private management in conformity with the workload assessed by the University and that appointment is approved by the University, the Government (through the Director of Collegiate Education) must disburse salary to that teacher. If the Director has doubts about the propriety of the appointment (for example, whether the workload justified the appointment), the Director is at liberty to refer the matter to the University. The University must then re-examine the issue and its decision on the matter is binding on the Director and the Government; accordingly, the Director must disburse salary in accordance with the University's determination.

The Court further observed, based on the Ordinance/Statute/Act provisions, that no provision authorises the Government to sit in judgment over the University's decision about the number of teachers for a department in a private college. In the absence of statutory authorisation, the Government cannot impose a condition that prior approval from the Director is necessary before a management appoints a teacher.

The Court then explained the amended procedure (effective 13.9.93) in Chapter XIII: a teacher's total weekly teaching work is specified (25 hours), with additional provisions for tutorials, tests, exams, field-work and extracurricular activities; calculation of hours and deduction of Principal/HOD workload; division by the maximum workload to determine if an additional post is required (only if balance exceeds six hours), and rules about part-time posts in certain low-workload subjects and solitary heavy-load cases (19 periods or more). The Court held that appointments made after 13.9.93 must conform to those amended provisions in order to be approved by the University and to attract Government-paid salaries.

Finally, applying these principles to the petitions before it, the Court directed the Collegiate Education authorities to refer the petitioners' appointments to the concerned Universities for decisions and to act in accordance with those decisions. The Court provided a timetable for disbursement (if appointments are found to conform): salary should be disbursed expeditiously and, in any event, within four months from receipt of a copy of the judgment.

Holding and Implications

Core Ruling: When a teacher appointed by a private college management is approved by the University in accordance with the applicable Ordinance/Regulations, the Director of Collegiate Education (and thereby the Government) must disburse the teacher's salary. If the Director doubts the propriety of an appointment, he may refer the question to the University; the University's decision upon re-examination is binding on the Director and Government.

Additional rulings and consequences:

The Government has no statutory authority to pre-empt or re-decide the University’s determination of the number of teachers required for a department in a private college, and therefore cannot condition an appointment on prior approval by the Director of Collegiate Education.

Appointments made prior to 13.9.93 must conform to Ordinance 3 of Chapter XIII (the pre-amendment procedure) to attract salary payment by the Government.

Appointments made on or after 13.9.93 must conform to the amended provisions of Chapter XIII (described in the judgment) to be approved by the University and to qualify for Government-paid salaries.

The Court directed the Deputy Director/Director of Collegiate Education to refer the petitioners' cases to the Universities and to disburse salary where the University finds the appointments conform to the statutory provisions; if so, salary must be paid expeditiously and within four months from receipt of the judgment copy.

The opinion addresses the direct legal and practical effects on the parties named in these petitions; it does not elaborate additional broader policy implications beyond the statutory interpretation and directions described above.

Cherian Mathew v. Principal S.B College, Changanassery

K. Sreedharan, J.:— When these matters came up for final hearing, counsel appearing on either side submitted that this Court need not go into the individual claims of the petitioners in these matters and it is sufficient for this Court to lay down the principles under which their salary is to be disbursed by the Director of the Collegiate Education. It was submitted that Collegiate Director should examine the issues in the light of the principles to be stated by this Court and salary disbursed. If he entertains any doubt regarding the propriety of the decision rendered by the University giving approval to the teacher, the issue should be taken up with the University and the University's decision thereon should be binding on the Director.

2. As agreed to by counsel appearing on either side and the learned Government Pleader, we are disposing of these Original Petitions stating the law on the basis of which appointments in Private Colleges are to be effected, the appointments are to be approved by the University and the law governing the disbursement of their salary by the Director of the Collegiate Education. Accordingly, we are disposing of all the matters by this common judgment. Kerala University First Ordinance 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chapter XIII of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department In the case of Mahatma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala University First Ordinance govern all similar issues. Likewise the Calicut University First Ordinance which is in para materia with that contained in Kerala University First Ordinance controls the procedure for calculating number of teachers required for a department.

3. On the basis of the work load calculated in terms of Ordinance 3 in the Kerala University First Ordinance, teachers are allowed to be appointed in Colleges run by private management The appointments so made in confirmity with the work load assessed by the University are approved by the concerned University. To the teacher whose appointments is so approved, salary should be paid by the Government through Director of Collegiate Education. In other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or the Calicut University First Ordinance as the case may be, his salary has to be disbursed by the Government if that appointment has been approved by the concerned University. In case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the work load did not require the appointment of such a teacher, the issue will have to be taken up by him with the University. The University then has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not When the University takes a decision on this aspect, that decision will be binding on the Government.

4. No provision of the University Act First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate Education is needed for a management to appoint a teacher in its staff.

5. Procedure for calculating number of teachers required for a department as per Third Ordinance in Chapter XIII of the Kerala University First Ordinance, prior to its amendment on 13.9.93 is in the following terms:—

(i) The total number of lecture hours per week in the case of Art. Subjects and the total number of lecture hours and supervision periods of practical classes in the case of Science subjects shall be calculated first on the basis of the hours prescribed for the concerned subject in the Syllabus for the respective courses and the strength of students.

(ii) From the total hours calculated above, the work load of the Head of the Department and if he happens to be also the Principal, that of the Principal, shall be deducted.

(iii) The balance hours so arrived at shall be divided by X-1 and where ‘X’ stands for the normal hours of lecture work prescribed for a lecturer in the case of Arts subjects, namely 14 and the normal hours of lecture work and supervision of practical classes prescribed for a lecturer in the case of science subjects, namely 15.

(iv) After the division as prescribed at (iii) above, if there is any balance of hours, onemore hour of work a week shall be assigned to each teacher including the Professor. If there is still any balance of hours left, a proposal for the creation of ah additional post may be made and on the appointment of a teacher in the additional post sanctioned by the University the work shall be distributed among all the teachers of the Department

Note:—

(1) In exceptional cases where the minimum work load of 13 hours in the case of Arts subjects and 14 in the case of Science subjects cannot be maintained, exemption from the minimum workload maybe granted, if the work load cannot otherwise be adjusted.

(2) In the case of subjects like Syrian, Arabic, Latin, Law or B. Com., etc. where the total work-load is below the minimum, only a part-time teacher shall be appointed.

6. When a teacher is appointed in accordance with the work load assessed in the above terms, the said appointment has to be honoured by the Director of Collegiate Education and salary disbursed, if the said appointment is approved by the University.

7. In case the Director doubts the correctness of that appointment, he will be at liberty to take up the matter with the University. When such a step is resorted to by the Director, the University has to examine the issue afresh and take a decision thereon. The decision so taken by the University as seen from the provisions of the Ordinance, Statute and Act is binding on the Director. In such a situation, the Director will have no other course than to disburse the salary of the teacher whose appointment is approved by the University.

8. As stated earlier, Chapter XIII of the Ordinance underwent major amendment with effect from 13.9.93 Procedure for calculating the number of teachers required for a department as per the amended provision is:—

(i) Total hours of teaching work per week (Lecture/Practical) shall be 25. A part from the above there shall be provision for tutorials, Tests, Exams, Field work and extra curricular activities.

The total number of lecture hours per week and supervision periods of practical classes for science subjects shall be calculated first on the basis of hours prescribed for the concerned subject in the syllabus and strength of students.

From the total hours so calculated the work load of Principal (if the Principal belongs to that Department) and the Head of the Department shall be deducted. The balance hours so arrived at shall be divided by the maximum work load of a teacher after deduction as prescribed above. If there is balance of hours exceeding six hours a proposal for the creation of an additional post may be made and with the sanction of the University an additional post can be created. The work load shall be distributed equally among all the teachers.

Provided that in the case of Law or B. Com. where the total work load is less than 7 hours only a part-time teacher shall be appointed as if it is not covered under the U.G.C Scheme.

(ii) Additional Post will be sanctioned only if there are periods above six. In solitary cases where a teacher will be burdened with 19 periods or above a part-time post will be sanctioned. The remuneration for the part-time post in Colleges will be as in the case of part-time law teachers appointed on contract basis.

9. Since this amendment was brought into force with effect from 13.9.93, appointments of teachers in Colleges belonging to private management should conform to the above conditions. Only if the appointments satisfy the above conditions, can the appointment be approved by the University and salary disbursed by the Director of Collegiate Education. In the case of such appointments also if the Director entertains any doubt regarding the compliance with the requirements, matter can be referred back to the University. University will have to examine the issue in detail and to give reply to the Director of Collegiate Education. The decision taken by the University will be binding on the Director. Depending on the decision, the salary of the teacher will have to be disbursed.

10. In the light of the above statutory provisions, we direct the concerned Deputy Director of Collegiate Education/Director of Collegiate Education to take up the issue regarding the appointment of the petitioners with the concerned Universities and to act in terms of their decisions. In case the appointment of these petitioners herein happened to be prior to 13.9.93 and was in confirmity with the Ordinance 3 in Chapter XIII of the Kerala University First Ordinance, 1978, teacher should be paid salary as per law. If the appointment happens to be subsequent to 13.9.93, the teacher will be entitled to salary if it is in conformity with Regulations 6 of Chapter XIII which was amended with effect from that date. Deputy Director of Collegiate Education/Director of Collegiate Education will examine the rights of the petitioners as Lecturers in the light of the provisions stated hereinbefore. In case it is found that their appointments are in conformity with the statutory provisions, their salary should be disbursed as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment.

11. Original Petitions and Writ Appeal are disposed of in the above terms.

O.P No. 33 of 1996-D and connected cases

Cherian Mathew v. Principal S.B College, Changanassery

Judgment Summary — K. Sreedharan, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Cherian Mathew v. Principal S.B College, Changanassery

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